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Judgment
D. Murugesan, J.—A draft proposal for BiBikulam Scheme in T.S. No. 2480 was formulated during the year 1968, but before finalisation
of the same, the Town Planning Officer, Madurai Corporation has approved the lay out plan to the petitioner. As per the Scheme, 40 feet width
road was earmarked in between the petitioners'' land and the 5th respondent''s land. The Scheme was approved by the Director of Town and
Country Planning on 31.12.1986 and thereafter it was notified in the Tamil Nadu Government Gazette on 11.1.1989.
It appears that the 5th respondent, the owner of the land opposite to the petitioners'' land filed a representation to the authorities for
reconsideration of the Scheme by reducing the width of the road from 40 feet to 20 feet on the ground that the total width of his land is only 56 feet
and if the road is formed with 30 feet, he will be left with only 26 feet and the said land will be rendered useless. The representation of the 5th
respondent was considered and by the impugned orders, the variation of the earlier Scheme was made whereby the width of the road in between
the petitioners'' land and the 5th respondent''s land was reduced to 20 feet. Aggrieved by the same, the petitioners have filed this Writ Petition.
Mr. V. Rengarajan, learned counsel appearing for the petitioners would submit that variation as made is not contemplated u/s 33 of the Town
and Country Planning Act. Even assuming that the Scheme could be varied, it could be varied only for the public purpose and not for protecting
the interest of an individual and finally, the learned counsel would submit that in any case, if the length of the road is more than 200 feet, the width
of the road cannot be reduced below 40'' by exercising the power u/s 33 of the Act as virtually the length of the road is more than 200 feet. In this
context, the learned counsel would rely upon the judgment of the Supreme Court reported in Bangalore Medical Trust Vs. B.S. Muddappa and
others, and the judgment of this Court reported in ELIMALAI AND 11 Ors. v. CORPORATION OF MADRAS AND Ors. 2002 (3) L.W.
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Mr. R. Chandrasekaran, learned Government Advocate appearing for the State as well as the Director of Town and Country Planning
submitted that inasmuch as the variation of the Scheme was made by the impugned order after following the procedures enumerated under
Sections 27,28 and 30 of the Act and the petitioners having failed to submit any objection when the objections were called for and having allowed
to publish the final notification, cannot now make any grievance.
I have heard Mr. M. Ratnam, learned counsel appearing for Madurai Local Planning Authority. By placing reliance on the counter affidavit, the
learned counsel argued on the same line as the learned Government Advocate argued. Mr. S. Subbiah, learned counsel appearing for the 5th
respondent has also argued on the same line and further submitted that if 30 feet of the land belonging to the 5th respondent is utilised for laying the
road, then the 5th respondent would be left with only 26 feet and even as per the counter affidavit of the Madurai Municipal Corporation, he
cannot utilise the land as he cannot get any planning permission.
Though the Scheme was formulated in the year 1968, the approval by the Government was granted only during the year 1986 and thereafter the
approval by the Director u/s 29 was granted only on 31.12.1986. The Notification as contemplated u/s 30 of the Act was published on
11.1.1989. There is no dispute that as per the approved Development Plan, 40 feet width road was planned in the place in question. Out of this 40
feet, 10 feet width of the land belongs to the petitioners and the remaining 30 feet of the land belongs to the 5th respondent and the lands are
private lands. It is the admitted fact that so far no land acquisition proceedings have been initiated and the lands were not acquired for forming the
Scheme. In the mean time, the 5th respondent made a representation to the authorities expressing his grievance as to the proposal of 40 feet width
road on the ground that if 30 feet is taken from the land of the 5th respondent, then he would be left with only 26 feet and if that be so, he cannot
utilise the land. The said request of the 5th respondent was considered in terms of Section 33 of the Act. In fact, the procedures enumerated under
Sections 27,29 and 31 were followed. In para 5 and 6 of the counter affidavit filed by the 3rd respondent/Member Secretary, Madurai Local
Planning Authority it is stated as follows:
I further submit that the above Notification of the 2nd respondent was re-notified by this respondent in ''MALAI MALAR"" page 4 on 9.8.97 in
Madurai District Gazette on 8.10.97 at page 30 and pasted in the Notice Board of this respondent on 31.7.1992, at the Notice Board of Madurai
District Collectorate on 12.8.97, Madurai Corporation Notice Board on 27.8.97, and in the Notice Board of the Regional Deputy Director of
Town and Country Planning, Madurai on 15.9.97. After completion of the above publication process, 60 days was allowed to the public for
making objections, suggestions and representations. No objections were received either from the petitioners or from any other persons within the
stipulated period of 60 days.
I further submit that by a resolution No. 57 dated 7.1.98 of the Local Planning Authority, this respondent addressed the 2nd respondent, DTCP
for confirmation of the above variation and the 2nd respondent has passed orders confirming the variations, viz., reduction of FF Road from 40
feet to 20 feet vide the proceedings of the 2nd respondent in Roc. 13440/96 DP1 dated 18.2.98. The above was published in Tamil Nadu
Government Gazette No. 10 Part VI Section I dated 18.3.98 at page 305-306. Thus, the variation has been done in a systematic and proper
manner adhering to all the statutory provisions and after giving sufficient opportunity to the public. Hence the action of the authorities are not
arbitrary.
It must be noticed that pursuant to the notice calling for objection, neither the petitioners nor any public file any objection, but they allowed the
Local Planning Authority to even resolve as early as on 7.1.1998 for confirmation of the Scheme.
Mr. V. Rengarajan, learned counsel appearing for the petitioners would submit that variation could be made only for public purpose and not to
protect the individual interest. I am not inclined to accept the said submission in the absence of any specific provision. u/s 33 of the Act there is no
condition that the variation should be made only for public purpose. Equally, the contention of the learned counsel for the petitioners that 40 feet
width road must be maintained if the length of the road is more than 200 feet, cannot be accepted as there is no such provision stipulating such
condition is brought to my notice. In the absence of any provision, it cannot be held that 40 feet width road must be maintained when the length of
the road is more than 200 feet. The two judgments relied on by the learned counsel for the petitioners are not applicable to the facts of this case. In
both the judgments, the issue put in before the Court was that when the Scheme as such was not revoked or varied or modified, the place
earmarked for public park or common use by the allottees cannot be converted for other purpose. In such circumstances, the Court said that the
place earmarked for a specific purpose under a Scheme, cannot be allowed to use for other purpose. However, on the facts of this case, the
Scheme itself has been varied by the impugned order and variation has been done strictly in conformity with Section 33 of the Act. As such, the
reduction of the width of the road cannot be said to contravene the very Scheme itself. Hence, the contention of the learned counsel for the
petitioners on the basis of the above two judgments cannot be accepted.
Even otherwise, on the facts, the impugned order cannot be assailed because they are supported by reasons. The 10 feet width of the land
belonging to the petitioners was earmarked for laying road. On the contrary, 30 feet width of the land belonging to the 5th respondent also
earmarked for laying the road. Out of 56 feet, if 30 feet width of the land belonging to the 5th respondent is taken, then he would be left with only
26 feet. In paragraph 3 of the Counter affidavit of the 3rd respondent it is stated that if the 5th respondent is left with 26 feet of the land, he would
not be in a position to utilise the land for any construction as no planning permission would be granted. There is one more reason added to this viz.,
remaining land belonging to the 5th respondent rendered un-utilised and while acquiring the land the Government should also pay compensation for
that land though the said land cannot be used for forming the road. In view of the above reason, in my considered view, it cannot be said that the
Government have not applied their mind before exercising the power u/s 33 of the Act for varying the very Scheme itself. It must also be borne in
mind that though the Scheme was framed, as on today, no road had been laid. From the sketch, it is seen that one more road with 40 feet width is
connecting the main road. It is also not correct to say that in the Scheme all the roads are 40 feet width roads. There is one road only with 20 feet
width as could be seen from the sketch. Even the width of the road is reduced, the residents have access to the main road by another 40 feet width
road. In the circumstances, I find no merit in the grievance of the petitioners and accordingly, the Writ Petition is dismissed. No costs.